Trump Administration Says It Can Hire, Fire Labor Panel at Will

By Erik Larson

May 13, 2020, 9:47 PM

The Trump administration shot back at a lawsuit over the power of a federal panel that resolves labor disputes between the government and its employees.

The suit, filed last month, claims that President Donald Trump stacked the obscure agency with anti-labor members. It was brought by a union-affiliated group of administrative judges who preside over hundreds of thousands of Social Security disability disputes across the U.S. every year. The judges say the Federal Service Impasses Panel is deciding too many crucial matters essentially unchecked.

The U.S. told a federal judge in a filing on Tuesday that the members of the panel, which was created by Congress, don’t require Senate confirmation. Moreover, the government claims, Trump in November delegated authority over the members to the Federal Labor Relations Authority, whose members are confirmed by the Senate. Under the Constitution’s Appointments Clause, that makes the panel members “inferior officers” who can be appointed by the “President alone,” the filing says.

“By majority vote, the Authority’s three Senate-confirmed members may remove panel members from their positions at will, at any time and for any reason,” the Justice Department said in the filing, made on behalf of the Social Security Administration, which intervened as a defendant in the suit.

Within months of taking office, Trump removed all the panel’s members and has replaced them with his own appointees over the last three years, according to the suit. Many of those now on the panel “have dedicated their careers to anti-union efforts,” the group of judges said.

The suit mirrors a complaint filed last year by a union for government employees alleging that Trump and the Social Security Administration were improperly using the panel to further a plan by the president “to radically restructure federal sector labor relations.” In that case, the union challenged a panel decision that slashed the amount of time that Social Security Administration employees who are also union officials can spend on union activities and barred the union from using free office space at the agency.